Take the High Road
06 March 2008
This article was first published in the
Gazette on 6 March 2008.
There is currently a grave crisis over
compensation for sufferers of pleural plaques, a scarring of the
lining of the lungs caused by exposure to asbestos. It has
arisen from the House of Lords’ judgment last autumn, in
Johnston v NEI that such plaques do not constitute a
compensatable injury. This followed a period of over 20 years
in which many with pleural plaques recovered damages that typically
fell in the range of £15,000 to £20,000. This is hardly the mark of
a “trivial” condition.
There are many reasons for
reversing their Lordships’ decision but the recent announcement by
the Scottish Government that people with pleural plaques will be
able to seek compensation in Scotland requires particular
attention. In Westminster, Bridget Prentice MP said that “if a
Scottish Parliament finds a way of dealing with it, we will examine
that very carefully. I agree that it will be unacceptable in such a
situation for people in one part of the United Kingdom to receive
compensation and others in another part not to do so. That would be
inequitable.”
Indeed it would. It should be inconceivable for
there not to be parallel legislation in England and Wales, and
would cause intense outrage to the Government’s very own
supporters. Such a situation would throw up absurd anomalies
and raises the spectre of cross-border litigation on abstruse and
difficult questions of international law. Companies that
operated on both sides of the border would have to pay compensation
to its employees North of the border but not to those who worked to
the South. The aggrieved Southerners would seek to rely on the
doctrine of forum conveniens to have their claims tried
under Scottish law, since they are denied a remedy in
England.
But there are more important issues at stake than
the uniformity of law across Scotland, England and Wales. The
decision of the House of Lords overturned 22 years of case law, and
sparked outrage from asbestos campaigners and politicians.
The view of the Lord Chief Justice in the Court of
Appeal was that it was better to wait for the proportion of
pleural plaques sufferers who go on to develop lung cancer or
mesothelioma to do so, and then obtain compensation for their
illnesses. However, these diseases are so aggressive
that a lifetime settlement is often unobtainable. For
the third of claimants who are bachelors, divorced or widowed,
the compensation is savagely reduced by the Law Reform
(Miscellaneous Provisions) Act before passing wastefully as a
windfall to their heirs. For the others, it is left to the
bereaved widows and children to pursue the claim.
Those who were subjected to heavy occupational
asbestos exposure have collective experience of the threat and
reality of mesothelioma and lung cancer. For them: the
diagnosis of pleural plaques is no “symptomless”
affair. For them it is “the beginning of the end” even if
they do not eventually go on to develop an asbestos cancer.
For many the airing of a grievance, an admission of liability
and an award of compensation provides an important element of
closure and of psychological healing. The availability of
provisional damages meant that pleural plaques victims could
obtain this closure whilst still preserving their entitlement to
full compensation if they went on to develop an asbestos
cancer. That right is now denied and for that reason
their Lordships’ decision is an injustice.
There really is no good reason not to
legislate. It will cost the Government and the tax payer
nothing. The effect of such a statute is that insurers who
have received the premiums will resume paying damages, as they have
done for over 20 years
The House of Lords has stated the law. It is well
known that on occasions the law and justice diverge. Wise
governments reconcile them again, and that is what is required of
this government now.
For further information, please contact Andrew Morgan.